The Constitutional Court. File picture: Tiro Ramatlhatse

Johannesburg - The Constitutional Court will on Monday hear an application about the invalidity of a section of the Land Use Planning Ordinance (Lupo).

The Western Cape High Court held that section 44 of Lupo was inconsistent with the Constitution's division of functional competencies between the three spheres of government. This was in terms of which municipalities had the power to regulate municipal planning.

Section 44 gives a province, through its MEC, the right to hear appeals against municipalities' planning decisions and to replace these decisions with its own.

The high court, however, observed that the Constitution gave provinces powers in respect of provincial planning, urban and rural development, and regional planning and development.

It noted that the Constitution gave provinces certain powers of oversight over municipal functions.

The court held that although section 44 was constitutionally invalid, it was constitutionally permissible for an MEC to intervene in certain cases.

It declared the section constitutionally invalid, and suspended the declaration of invalidity for 24 months to allow Parliament to amend the section.

In the interim, the court ordered a reading in of the section to allow appeals to the MEC, only if justified by the province's oversight powers or when the decision overlapped with provincial imperatives.

The Western Cape local government MEC supported the high court's reasoning.

The Johannesburg metropolitan municipality, which was admitted as a friend of the court, agreed that the section was unconstitutional but contended that the MEC had no constitutionally permissible power to intervene in particular municipal decisions.

The Johannesburg metropolitan municipality was arguing that the high court's reading in was constitutionally impermissible.

The municipality wants the Constitutional Court to declare section 44 constitutionally invalid and suspend the order of invalidity, without prescribing an interim reading in.